Surveillance Prompts a Suit: Police v. Police

By JIM DWYER

Published: February 3, 2006

The demonstrators arrived angry, departed furious. The police had herded them into pens. Stopped them from handing out fliers. Threatened them with arrest for standing on public sidewalks. Made notes on which politicians they cheered and which ones they razzed.

Meanwhile, officers from a special unit videotaped their faces, evoking for one demonstrator the unblinking eye of George Orwell's ''1984.''

''That's Big Brother watching you,'' the demonstrator, Walter Liddy, said in a deposition.

Mr. Liddy's complaint about police tactics, while hardly novel from a big-city protester, stands out because of his job: He is a New York City police officer. The rallies he attended were organized in the summer of 2004 by his union, the Patrolmen's Benevolent Association, to protest the pace of contract talks with the city.

Now the officers, through their union, are suing the city, charging that the police procedures at their demonstrations -- many of them routinely used at war protests, antipoverty marches and mass bike rides -- were so heavy-handed and intimidating that their First Amendment rights were violated.

A lawyer for the city said the police union members were treated no differently than hundreds of thousands of people at other gatherings, with public safety and free speech both protected. The department observes all constitutional requirements, the city maintains.

The lawsuit by the police union brings a distinctive voice to the charged debate over how the city has monitored political protest since Sept. 11. The off-duty officers faced a ''constant threat of arrest,'' Officer Liddy testified, all but echoing the complaint by activists for other causes that the city has effectively ''criminalized dissent.''

The lawsuit is one of three recent legal actions in which the city has been accused of abuses of power that the plaintiffs say crimped free expression, a charge that officials say is belied by the reality of noisy sidewalks and streets, crammed year-round with parades and rallies.

At the core of all three cases are questions about the expanded powers the police were granted after the 2001 attacks, and how much the department needs to know about the politics of people who are expressing their views.

In 2003, a federal judge eased longstanding and strict limits on surveillance of political activity at the request of lawyers from the city's corporation counsel office, who argued that the Police Department needed broader authority to use such tactics to fight terrorism.

Since then, police officers in disguise have taken part in demonstrations, an approach the Police Department says it used before receiving the expanded powers; other officers have made hundreds of hours of videotapes of people involved in protests and rallies, very few of whom were charged with breaking any law. Neither form of surveillance, the city argues, violates the Constitution.

The three pending cases -- two of them brought by civil liberties lawyers and the third by the police union -- are the first to demand judicial scrutiny of those tactics.

Among those three, the police union was the earliest to challenge the city, and its case has the most striking dynamic: the very people asked to fight terrorism are claiming that the city's new antiterrorism tools have been bluntly and illegally applied to the exercise of their own civil rights.

''It puts the whole issue into stark relief,'' said Elizabeth McNamara, a lawyer who represents the P.B.A. and other unions in the suit.

In July and August 2004, a few dozen off-duty officers -- joined at times by firefighters -- popped up at places where Mayor Michael R. Bloomberg was scheduled to appear, chanting and handing out leaflets about labor negotiations.

The unions maintain that their demonstrations, in the weeks before the 2004 Republican National Convention opened in New York, embarrassed the mayor just as the national press corps was turning its attention to the city, and that the Police Department responded by cracking down. They are seeking a court declaration that their rights have been violated, as well as damages.

Lawyers for the city say that police union members pestered truck drivers making deliveries, obstructed sidewalks near the mayor's home, and taunted the mayor's press secretary by saying they knew where he lived. The Police Department, the city lawyers say, is neutral about political messages and used barricades and other crowd control methods only to protect the rights of the public and to keep order.

However, the police union said it had uncovered evidence that the department took a keen interest in what the demonstrators were saying, not just how they said it.

During a deposition of the chief of department, Joseph Esposito, who is the department's top uniformed official, Ms. McNamara read parts of a report prepared by the department's Internal Affairs Bureau, which noted that the protesters included members of the Police and Fire Department unions.

''In Paragraph 4, it says that members of both departments called out to the mayor for pay raises,'' Ms. McNamara said, according to the court transcript, ''In Paragraph 5, it notes that the protesters clapped and cheered when former Mayor Koch appeared.''

She asked, ''What would be the basis for them recording the content of the protesters' demonstrations?''